93 Decision Citation: BVA 93-04209
Y93
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 91-38 718 ) DATE
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THE ISSUES
1. Entitlement to an increased evaluation for a left knee
disability, currently evaluated as 30 percent disabling.
2. Entitlement to service connection for a right hip
disability on a secondary basis.
3. Entitlement to a total rating based on individual
unemployability due to service-connected disabilities.
REPRESENTATION
Appellant represented by: Fleet Reserve Association
ATTORNEY FOR THE BOARD
Jill L. Rygwalski, Associate Counsel
INTRODUCTION
This matter came to the Board of Veterans' Appeals (Board)
on appeal from rating decisions of the Department of
Veterans Affairs (VA) Regional Office (RO) in
St. Petersburg, Florida. The veteran served on active duty
during the Vietnam era and also has peacetime service. This
case was previously before the Board in January 1992 on the
issue of entitlement to an increased evaluation for left
knee disability. At that time, the case was remanded to the
RO for adjudication of the issues of entitlement to an
increased evaluation for a right knee disability,
entitlement to service connection for a right hip disability
on a secondary basis, and entitlement to a total rating
based on individual unemployability due to service-connected
disabilities. A rating decision on the issues appearing on
the title page was issued in June 1992, and a supplemental
statement of the case on those issues was issued in July
1992. The veteran's substantive appeal on the issues of
entitlement to secondary service connection for right hip
disability and entitlement to a total rating based on
unemployability was received in August 1992.
The case was returned to the Board and docketed in October
1992. The veteran is represented in his appeal by the Fleet
Reserve Association. That organization submitted additional
written argument on behalf of the veteran in September 1992
and January 1993.
REMAND
Initially, we note that the veteran was informed by a letter
in August 1992 that the RO had confirmed the evaluations for
his service-connected right knee disability, hiatal hernia,
and headaches, and had assigned a 10 percent evaluation for
the service-connected cervical spine disability. The
veteran, in a letter dated later that month, indicated his
disagreement with the evaluations assigned for his right
knee disability, hiatal hernia, headaches and cervical spine
disability. The RO has not provided the veteran with a
supplemental statement of the case in response to this
notice of disagreement.
In addition, we note that although the veteran was examined
by VA in April 1992, he was only given a general medical
examination, and as noted by the representative, the
examiner failed to examine the veteran for a right hip
disability. Furthermore, the veteran's representative, in
the informal hearing presentation, requested that the case
be returned to the RO so that additional VA outpatient
treatment records could be obtained for review. VA has a
duty to assist the veteran in the development of facts
pertinent to his claims. 38 U.S.C.A. § 5107(a) (West 1991);
38 C.F.R. § 3.103(a) (1992). The United States Court of
Veterans Appeals has held that the duty to assist a veteran
in obtaining and developing available facts and evidence to
support a claim includes obtaining an adequate VA
examination. Littke v. Derwinski, 1 Vet.App. 90 (1990). In
light of the foregoing, the Board believes that further
development, as specified below, should be completed before
reaching a final decision on any of the veteran's claims.
Accordingly, the case is REMANDED to the RO for the
following actions:
1. The RO should contact the veteran and
request that he provide the names and
addresses of all health care providers
who have treated him for a left knee
disability, headaches, arthritis of the
cervical spine, varicose veins, a right
knee disability, a hiatal hernia or post
carpal tunnel release of the right wrist
in recent years, other than the VA
Medical Centers in Gainesville and
Jacksonville, Florida. Then, after any
necessary authorization is obtained from
the veteran, the RO should attempt to
obtain copies of all treatment records
identified by the veteran, as well as
those from the VA Medical Centers in
Gainesville and Jacksonville, Florida,
since January 1992.
2. The RO should arrange for orthopedic,
neurology, vascular and gastrointestinal
examinations of the veteran. The
orthopedic examination should be provided
to determine the current severity of the
veteran's left knee disability, right
knee disability and arthritis of the
cervical spine. In addition, the
orthopedist should determine the nature
and extent of any current right hip
disability. In the event a right hip
disability is diagnosed, the orthopedist
should provide an opinion as to whether
the service-connected left knee
disability caused, contributed to or
worsened the right hip disability. The
rationale for the opinion should be set
out in detail. The vascular examination
should be performed to determine the
current severity of the veteran's
varicose veins. The neurologic
examination should be performed to
determine the current severity of the
veteran's post carpal tunnel release of
the right wrist and his headaches. A
gastrointestinal examination should be
performed to determine the current
severity of the veteran's hiatal hernia.
With respect to each examination, all
indicated studies should be performed,
and the claims folder should be made
available to each examiner prior to the
examination.
3. The RO should readjudicate the claims
for an increased evaluation for a right
knee disability, an increased evaluation
for a hiatal hernia, an increased
evaluation for headaches, an increased
evaluation for a cervical spine
disability, an increased evaluation for a
left knee disability, and service
connection for a right hip disability on
a secondary basis. In the event the
veteran's combined service-connected
rating remains less than 100 percent, the
RO should readjudicate the claim for
entitlement to a total rating based on
unemployability due to service-connected
disabilities.
If the veteran continues to disagree with any of the
decisions of the RO, and if otherwise appropriate, a
supplemental statement of the case should be issued. In the
event the RO denies entitlement to an increased evaluation
for a right knee disability, an increased evaluation for a
hiatal hernia, an increased evaluation for headaches and/or
an increased evaluation for a cervical spine disability, the
supplemental statement of the case should inform the veteran
that he must submit a completed VA Form 1-9, or
correspondence containing the necessary information, in
order to perfect his appeal as to that (those) issue(s).
Then, the veteran and his representative should be provided
an opportunity to respond. Thereafter, the case should be
returned to the Board for further consideration, if
otherwise in order. By this REMAND, the Board intimates no
opinion as to any of the final outcomes warranted. No
action is required of the veteran, until he is contacted by
the RO.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
SHANE A. DURKIN
ROBERT E. SULLIVAN
*38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
(CONTINUED ON NEXT PAGE)
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United
States Court of Veterans Appeals. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal. 57 Fed.
Reg. 4126 (1992) (to be codified as 38 C.F.R. § 20.1100(b)).